Driving while exceeding the prescribed concentration of alcohol (2)

What the Law states - Driving while exceeding the prescribed concentration of alcohol (2)

Road Safety Act 1986 - SECT 49

Offences involving alcohol or other drugs

49. Offences involving alcohol or other drugs

(1) A person is guilty of an offence if he or she-

(f)  within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysinginstrument under section 55 and-

(i)  the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and

(ii) the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle;

Maximum Penalty for the charge of Driving while exceeding the prescribed concentration of alcohol (2)

First offence: 12 penalty units

Second offence:

6 months / 60 penalty units (if the concentration of alcohol in the person's blood was less than 0×15 grams per 100 millilitres of blood; or in the person's breath was less than 0×15 grams per 210 litres of exhaled air as the case requires).

12 months / 120 penalty units (if the concentration of alcohol in the person's blood was 0×15 grams or more per 100 millilitres of blood; or in the person's breath was 0×15 grams or more per 210 litres of exhaled air as the case requires).

Subsequent offence:

12 months / 120 penalty units (if the concentration of alcohol in the person's blood was less than 0×15 grams per 100 millilitres of blood; or in the person's breath was less than 0×15 grams per 210 litres of exhaled air as the case requires).

18 months / 180 penalty units (if the concentration of alcohol in the person's blood was 0×15 grams or more per 100 millilitres of blood; or in the person's breath was 0×15 grams or more per 210 litres of exhaled air as the case requires).

Note: A person who is guilty of an accompanying driver offence is liable to a fine of not more than 5 penalty units.

What the Prosecution must prove - Driving while exceeding the prescribed concentration of alcohol (2)

1. The person was driving or was in charge of the motor vehicle.

2. The person gave a sample of breath within 3 hours of that driving or being in charge of the motor vehicle.

3. The result showed that the person has the prescribed concentration of alcohol (or more) present in his/her breath.

4. The result was not due solely to the consumption of alcohol after the driving or being in charge of the motor vehicle.

Possible Defences - Driving while exceeding the prescribed concentration of alcohol (2)

1. Factual dispute.

2. The breath analysing instrument used was not in proper working order or properly operated (s49(4)).

Which court will hear the charge of Driving while exceeding the prescribed concentration of alcohol (2)

Magistrates' Court.